By RICHARD PRIMUS
In a much-anticipated decision Monday morning, the Supreme Court ruled – by a vote of 7 to 2 – in favor of a Colorado baker who claimed his refusal to sell a wedding cake to a same-sex couple was protected under the First Amendment. Some conservatives are exultant. Radio host Hugh Hewitt, for example, called the decision “An enormous, milestone victory for religious belief and First Amendment.”
But from a culture-war perspective, the baker’s victory was considerably less than opponents of same-sex marriage might have been hoping for. Rather than saying that the First Amendment entitles people with religious objections to same-sex marriage to be exempted from laws prohibiting discrimination against same-sex couples, the Court ruled only that the specific administrative proceeding that ruled against this particular baker had been tainted by a disrespectful attitude toward his religious beliefs. As a concurring opinion from Justice Elena Kagan pointed out, under Monday’s decision the exact same Colorado law could be applied against a different baker (or even this baker) in a future case presenting the same facts, so long as the adjudicative process is free of anti-religious bias.
But by framing the case as it did, the Court made its limited decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission a warm-up act for another decision expected later this month—one at least as anticipated as Monday’s wedding-cake decision. That other case is Hawaii v. Trump, the case about the executive order banning entry into the United States by nationals of several countries, most of them majority-Muslim. That case, like the wedding-cake case, is about the First Amendment’s Free Exercise Clause. The author of Monday’s decision, Justice Anthony Kennedy, is generally assumed to be the swing vote in the entry-ban case. And over and over in Monday’s decision, Justice Kennedy articulated positions directly relevant to the entry ban—all of them running against the Trump administration’s position.
At issue in Hawaii v. Trump is whether the entry ban order results from anti-Muslim animus—that is, a kind of religious prejudice. Much of the fight is about whether courts should ignore President Trump’s Islamophobic statements when reasoning about the purpose of the entry ban. In Monday’s decision, Justice Kennedy made plain that it is appropriate to consider the prejudice in things government officials say when analyzing claims that those officials’ actions are unconstitutionally discriminatory: The key to the Masterpiece Cakeshop decision, for Kennedy, was a series of statements by two members of the Colorado Civil Rights Commission that displayed, or might have suggested, a prejudicial attitude toward the baker’s religious beliefs.